As Howard Friedman reports at Religion Clause, a second lawsuit has now been filed against the Montana Revenue Department for its silly decision to exclude parents and donors of religious schools from participating in the state's tax-credit program for donations to "student scholarship organizations" (SSOs). This complaint is in federal court.

The comments our St. Thomas religious liberty clinic filed, on behalf of several organizations, when the Department was considering the rule predicted that it would be awash in litigation. Why the tax lawyers at the Department wanted to bring this on is beyond me. As we wrote back then, the exclusion is based on a House that Jack Built sequence: the asserted need to prevent the state from crediting "a donation to an SSO that funds a scholarship that assists a parent who chooses a school that may or may not be religious."

The current volume of the Stanford Law & Policy Review contains several law and religion articles. While all may be of interest to MOJ readers, three may be of particular interest. Here are the titles and a brief description from the SLPR webpage.

Constitutional Contraction: Religion and the Roberts CourtMarc O. DeGirolami, Professor of Law & Associate Dean for Faculty Scholarship, St. John's UniversityThis Article argues that the most salient feature to emerge in the first decade of the Roberts Court's law and religion jurisprudence is the contraction of the Constitutional Law of religious freedom.26 Stan. L. & Pol'y Rev. 385 (2015)

Archetypes of Faith: How Americans See, and Believe in, Their ConstitutionAliza Plener Cover, Associate Professor, University of Idaho College of Law This Article offers a new framework to illuminate how American faith in the Constitution is sustained over time. It builds upon the evocative Passover story of the Four Sons—one of whom is wise, one wicked, one simple, and one who does not know how to ask—and argues that these archetypes resonate deeply in the constitutional context. 26 Stan.L.& Pol'y Rev. 555 (2015)

I nominate my article for the prize of most unwieldy title, Marc's for most legally insightful, and Cover's for most culturally insightful.

A few days before Christmas, the National Catholic Reporter published an article (available here) by Angela Cave, a reporter for Catholic News Service. The article addresses the challenges – both of the present day and those that loom on the horizon – confronting religious communities and organizations who oppose same-sex marriage. I was interviewed for this piece as was Villanova political scientist Daniel Mark.

In the article, each of us discusses how the Obergefell decision marks not the end of the same-sex marriage debate, but the beginning of a new chapter in which supporters of same-sex marriage will seek to make their opponents submit to the new order. Religious believers and institutions are among the most conspicuous dissenters who will be targeted in this effort to change the culture. That, after all, is the goal of this movement – not formal “equality,” but the affirmation of sexual identity. And where that affirmation is not voluntary, LBGT culture-warriors will cheerfully seek to employ both social exclusion and governmental coercion to achieve their desired ends. Thus, Catholics schools and other institutions that remain faithful to Church teaching will have their employment and employee benefit policies challenged, together with their tax-exempt status, to mention only the most obvious examples. Others are discussed in the article.

What does not appear in the article are two points I made in the interview. (I add this not by way of criticism, mindful of the constraints that space and editorial decisions necessarily impose). First, I noted that these challenges to religious liberty are not taking place in isolation. Indeed, the Obama administration’s efforts to require religious institutions and companies to provide contraceptives, sterilization procedures, and abortifacient drugs through the HHS mandate – to appropriate these organizations for the government’s own purposes – are taking place at the same time. Second, I noted that it is plainly the case that LGBT individuals have been subject to unjust discrimination and hateful treatment in many instances throughout history, and that this was contrary to Church teaching and the spirit of the Gospel. At the same time, I noted that allowing religious institutions to follow their religious consciences and refrain from equating a same-sex union with traditional, conjugal marriage between one man and one woman was neither hateful nor unjust.

A third point, which I did not offer in the interview, but which I will now share is the following. Swimming against the cultural tide – opposing the cultural normativity of same-sex marriage – takes an enormous amount of courage. This is also true of religious leaders, including the Catholic bishops in the United States. There is enormous pressure for local ordinaries to change their policies, to “get with the times,” to employ individuals in parochial schools and social service organizations and diocesan staff offices who are civilly married to a person of the same sex, and to offer that couple the same benefits as a married man and woman. So far the U.S. bishops have shown enormous resilience in upholding the Church’s teaching with integrity. They have resisted the urge to change.

But their unanimity and resilience will be tested. Undoubtedly, some bishops favor such a change – whether out of desire to appear “pastoral,” “welcoming,” and “inclusive,” or out of a genuine theological conviction that the Church’s teaching on sexuality needs to be “updated.” No doubt some bishops will be inclined to do what is easy and popular (which they and their allies will see as courageous and prophetic) – defending their actions as simple compliance with the positive law – a compliance that is necessary in a pluralistic society such as ours. Of course the bishops did not hide behind the excuse of “legality” in the days and years following the Court’s ruling in Roe v. Wade. Of course pluralism is not the goal of the current challenges to religious conscience, but legal and cultural hegemony.

When put to the test – a test that is surely coming – let us hope and pray that the members of the American episcopacy will look to the example of St. John Fisher and not that of Thomas Cranmer.

Becket was a type of those historic times in which it is really very practical to be impracticable. The quarrel which tore him from his friend's side cannot be appreciated in the light of those legal and constitutional debates which the misfortunes of the seventeenth century have made so much of in more recent history. To convict St. Thomas of illegality and clerical intrigue, when he set the law of the Church against that of the State, is about as adequate as to convict St. Francis of bad heraldry when he said he was the brother of the sun and moon. There may have been heralds stupid enough to say so even in that much more logical age, but it is no sufficient way of dealing with visions or with revolutions. St. Thomas of Canterbury was a great visionary and a great revolutionist, but so far as England was concerned his revolution failed and his vision was not fulfilled. We are therefore told in the text-books little more than that he wrangled with the King about certain regulations; the most crucial being whether "criminous clerks" should be punished by the State or the Church. And this was indeed the chief text of the dispute; but to realise it we must reiterate what is hardest for modern England to understand—the nature of the Catholic Church when it was itself a government, and the permanent sense in which it was itself a revolution.

It is always the first fact that escapes notice; and the first fact about the Church was that it created a machinery of pardon, where the State could only work with a machinery of punishment. It claimed to be a divine detective who helped the criminal to escape by a plea of guilty. It was, therefore, in the very nature of the institution, that when it did punish materially it punished more lightly. If any modern man were put back in the Becket quarrel, his sympathies would certainly be torn in two; for if the King's scheme was the more rational, the Archbishop's was the more humane. And despite the horrors that darkened religious disputes long afterwards, this character was certainly in the bulk the historic character of Church government. It is admitted, for instance, that things like eviction, or the harsh treatment of tenants, was practically unknown wherever the Church was landlord. The principle lingered into more evil days in the form by which the Church authorities handed over culprits to the secular arm to be killed, even for religious offences. In modern romances this is treated as a mere hypocrisy; but the man who treats every human inconsistency as a hypocrisy is himself a hypocrite about his own inconsistencies.

Our world, then, cannot understand St. Thomas, any more than St. Francis, without accepting very simply a flaming and even fantastic charity, by which the great Archbishop undoubtedly stands for the victims of this world, where the wheel of fortune grinds the faces of the poor. He may well have been too idealistic; he wished to protect the Church as a sort of earthly paradise, of which the rules might seem to him as paternal as those of heaven, but might well seem to the King as capricious as those of fairyland. But if the priest was too idealistic, the King was really too practical; it is intrinsically true to say he was too practical to succeed in practice. There re-enters here, and runs, I think, through all English history, the rather indescribable truth I have suggested about the Conqueror; that perhaps he was hardly impersonal enough for a pure despot. The real moral of our mediæval story is, I think, subtly contrary to Carlyle's vision of a stormy strong man to hammer and weld the state like a smith. Our strong men were too strong for us, and too strong for themselves. They were too strong for their own aim of a just and equal monarchy. The smith broke upon the anvil the sword of state that he was hammering for himself. Whether or no this will serve as a key to the very complicated story of our kings and barons, it is the exact posture of Henry II to his rival. He became lawless out of sheer love of law. He also stood, though in a colder and more remote manner, for the whole people against feudal oppression; and if his policy had succeeded in its purity, it would at least have made impossible the privilege and capitalism of later times. But that bodily restlessness which stamped and spurned the furniture was a symbol of him; it was some such thing that prevented him and his heirs from sitting as quietly on their throne as the heirs of St. Louis. He thrust again and again at the tough intangibility of the priests' Utopianism like a man fighting a ghost; he answered transcendental defiances with baser material persecutions; and at last, on a dark and, I think, decisive day in English history, his word sent four feudal murderers into the cloisters of Canterbury, who went there to destroy a traitor and who created a saint.

Courtesy of our friends at BYU’s International Center for Law and Religion Studies, I’m happy to announce the seventh annual Religious Liberty Student Writing Competition, co-sponsored by the J. Reuben Clark Law Society. Details below (n.b.: prizes seem to be on the heftier side this year!).

Religious Liberty Student Writing Competition

DEADLINE: JULY 1, 2016

Purpose

To promote legal and academic studies in the field of religious liberty by law students and students pursuing related graduate studies. Students who have graduated from law school but who are not yet practicing law due to clerkships or other similar pursuits are also invited to submit papers.

Form

Scholarly paper relating to the topic of domestic or international religious liberty, broadly or narrowly construed, consisting of 9,000-13,000 words, including footnotes. Eligible papers must be typed, thoroughly cited and presented in a format suitable for publication, with no additional editing required. Papers must conform to Bluebook requirements and may include footnotes. Papers prepared for academic coursework are permitted.

Submission

All papers must be submitted on or before July 1, 2016. Papers should be submitted by e-mail to papers@ jrclsdc.org in pdf and/or docx formats. A current resume should also be included. You will receive e-mail confirmation of your submission. Questions regarding submission may be directed to papers@jrclsdc.org.

Awards

Top entries will receive the following awards:

FIRST PLACE $4000 cash award

SECOND PLACE $3000 cash award

THIRD PLACE $2000 cash award

HONORABLE MENTION Four $1000 cash awards

Selection

All papers will be reviewed for their conformity to the above requirements and for their substantive treatment of the topic. Awards will be presented at the Religious Liberty Award Dinner in Washington, DC on Thursday, October 6, 2016.

If you want it (for, say, holiday dinner-table arguments), Ross Douthat gives a long, detailed list of why The Force Awakensis not a reboot of, but rather the "the same frickin' movie" as, previous ones. He almost persuades me that its overwhelming critical success is evidence of cultural decadence. (No reason to post this here, except that MOJ writers frequently discuss what Douthat says and this gave me an excuse to endorse this view of Ep. 7.) And yes, if the attractive new characters are given an interesting new plot in the next two episodes, the new series will prove to be a success.

Horizontal celebrations of Christmas connectedness remind us of the vertical dimensions of human existence.

We can even occasionally forget that Christmas is only the second-most vertical of Christian holidays. But this forgetfulness is temporary. On reflection, horizontal and vertical fuse as our horizon extends backwards and forwards.

We feel the loss of loved ones as we observe children immersed in the present. We treasure what their future promises both them and us ... all children of a loving God. And we project ourselves into their presentness as we remember the past.

Christian faith, hope, and love converge.

* * *

I've been thinking lately about John Marshall's eulogy for his wife, Polly. I'd read it multiple times before it occurred to me to wonder who was his audience and why he wrote it. I'm still not sure. But I can report that it was found together with his will. The manuscript somehow came into the possession of a granddaughter. It is a beautiful tribute from a grieving man, and very much worth sharing.

There are two principal lessons which we are taught on the great Festival which we this day celebrate, lowliness and joy. This surely is a day, of all others, in which is set before us the heavenly excellence and the acceptableness in God’s sight of that state which most men have, or may have, allotted to them, humble or private life, and cheerfulness in it. If we consult the writings of historians, philosophers, and poets of this world, we shall be led to think great men happy; we shall be led to fix our minds and hearts upon high or conspicuous stations, strange adventures, powerful talents to cope with them, memorable struggles, and great destinies. We shall consider that the highest course of life is the mere pursuit, not the enjoyment of good.

But when we think of this day’s Festival, and what we commemorate upon it, a new and very different scene opens upon us. First, we are reminded that though this life must ever be a life of toil and effort, yet that, properly speaking, we have not to seek our highest good. It is found, it is brought near us, in the descent of the Son of God from His Father’s bosom to this world. It is stored up among us on earth. No longer need men of ardent minds weary themselves in the pursuit of what they fancy may be chief goods; no longer have they to wander about and encounter peril in quest of that unknown blessedness to which their hearts naturally aspire, as they did in heathen times. The text speaks to them and to all, “Unto you,” it says, “is born this day in the city of David a Saviour, which is Christ the Lord.”

I've blogged a bit lately about Walker Percy and recently came across this passage from his book, Lost in the Cosmos: The Last Self-Help Book, which I thought I would share:

“Thought Experiment: You are a native of New York City, you live in New York, work in New York, travel about the city with no particular emotion except a mild boredom, unease, exasperation, and dislike especially for, say, Times Square and Brooklyn, and a longing for a Connecticut farmhouse. Later you become an astronaut and wander in space for years. You land on a strange, unexplored (you think) planet. There you find a road sign with an arrow, erected by a previous astronaut in the manner of GIs in World War II: 'Brooklyn 9.6 light-years.' Explain your emotion.” ― Walker Percy, Lost in the Cosmos: The Last Self-Help Book

The Montana Legislature recently enacted a state tax credit for donations to charitable organizations that provide scholarships for students attending private schools (including, on equal terms, religious schools). When taxpayers have objected that such a programs "aids religion," a number of state courts have rejected that assertion on the merits, most notably the Arizona Supreme Court in Kotterman v. Killian, 972 P.2d 606 (Ariz. 1999). And the U.S. Supreme Court held that taxpayers lacked standing in federal court to challenge Arizona's program under the Establishment Clause (Arizona Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436 (2011)).

Unfortunately, as Religion Clause recently reported, the Montana Department of Revenue (charged with enforcing the statute) has promulgated a rule excluding the use of tax credits to support donations for students who use them at "sectarian" schools. The Department has the misguided notion that this program is prohibited by the Montana Constitution's ban on "any direct or indirect appropriation or payment from any public fund or monies ... to aid any [school] controlled in whole or part by any, church, sect, or denomination." Mont. Const. Art. X, sec. 6. This is a particularly egregious example of the use of a state "Blaine Amendment" to discriminate against families who choose religious schooling for their children, and against donors who want to support that choice. (As we'venoted here recently, the Supreme Court is considering important certiorari petitions challenging the application of Colorado Blaine's Amendment to discriminate against religious choices in education.)

Several parents, represented by the Institute for Justice, have filed suit against the new rule. During the agency process preceding the final promulgation of the rule, the Religious Liberty Appellate Clinic at St. Thomas, which I direct, drafted comments (here) filed by the Christian Legal Society and the Lutheran Church--Missouri Synod. We pointed out a bunch of things, with lots of supporting authority: that a tax credit is not an appropriation or payment, that the credits aid families rather than religious schools as such, and that such discrimination against religious choices is contrary to basic First Amendment principles. One sample bit (emphasis added):

Indeed, excluding religious organizations from this credit would a fortiori require excluding them from tax exemptions and from deductions for charitable contributions, since those exemptions are not separated by the additional steps present here: donation to an SSO that funds a scholarship that assists a parent who chooses a school that may or may not be religious. To find an unconstitutional connection in the House-that-Jack-built sequence of actions here would have intolerable consequences, “endanger[ing] the legislative scheme of taxation.” Toney, 744 N.E.2d at 357. The Montana Constitution, and thus the tax-credit statute, provides no authority for the Department to take this step.

Thanks to UST Law student Jennifer Tripp for her drafting work on the comments.